What Redskins and Charlie Hebdo Have in Common

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read More.

The Washington Redskins finished the season well out of the National Football League playoffs -- but the court case involving the trademark on the team's name and logo won't go away. The Department of Justice has announced that it will intervene in the latest iteration of the suit, in which the Redskins are challenging a decision by the U.S. Patent and Trademark Office denying them trademark registration.

The Justice Department's intervention is significant. The government is defending the constitutionality of the provision of the Lanham Act that denies registration for disparaging marks. That suggests the Justice Department thinks the arguments for the unconstitutionality of the law are serious enough to warrant a response.

In turn, this raises a question about the meaning of the First Amendment and its application to racial hate speech -- a topic of global significance after the Charlie Hebdo attack last week in Paris. It may seem like a long distance from the gridiron to terrorism, but in this case, it isn't: The true meaning of free expression forms an immediate connection between the two.

Start with the law. Section 2(a) of the Lanham Act says that no mark may be denied registration unless it “consists of or comprises immoral, deceptive, or scandalous matter which may disparage … institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

On the surface, there would seem to be nothing constitutionally troubling about this arrangement. The law says only that the patent office won't register an offensive trademark. Denial of registration, however, doesn't prohibit the holder from using the trademark anyway, or even suing those who might infringe. Instead it denies the special benefits of Lanham Act registration, which include use of the ® symbol, a presumption of trademark ownership, and certain protections against the importation of counterfeit goods.

The constitutional argument against Section 2(a) must be that it amounts to a form of viewpoint discrimination, as UCLA law professor Eugene Volokh has suggested.

Viewpoint discrimination is a particularly quirky aspect of First Amendment jurisprudence. It says that even where the government can permissibly limit the subject matter of discussion in a particular forum, it cannot prefer certain viewpoints within that forum to others.

One of the classic instances of this doctrine involves the regulation of hate speech. In the 1992 decision R.A.V. v. St. Paul, Justice Antonin Scalia, writing for the court, struck down an ordinance passed by the city of St. Paul, Minnesota, that outlawed cross burning, Nazi swastika graffiti, or any other form of symbolic communication that would arouse “anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender.”

The clever thing about the ordinance was that it was designed to prohibit only speech that fell into a special category known as “fighting words,” which the Supreme Court had previously said were entitled to be regulated without violating the First Amendment. In essence, the St. Paul ordinance outlawed hate speech that counted as fighting words -- understood to include words that would be likely to cause offended hearers to strike back without thinking.

Scalia pointed out that even if the hate speech ordinance was otherwise permissible, it amounted to viewpoint discrimination. His reasoning was that the law allowed you to use fighting words provided they didn't relate to race, religion or gender. The law therefore discriminated against the viewpoints of racism, religious bigotry and sexism.

Applied to the patent office, the logic of viewpoint discrimination calls into question the idea that a government body would under the Lanham Act pick and choose between trademarks based on whether they were disparaging. This is especially striking because Section 2 gives trademark registration to all applicants unless they violate the disparagement ban.

The best defense would appear to be that the Lanham Act doesn't actually prohibit any speech. But this answer is inadequate, because in some viewpoint discrimination cases, the question isn't whether the government is prohibiting certain speech but whether it's refusing to fund disfavored speech when it funds other speech.

Fundamentally, Scalia's core idea of viewpoint discrimination is that when government engages with private speech, it must remain neutral as between competing social values. As long as the government is doing the talking, it can say whatever it wants. But for private parties doing the talking, the government isn't supposed to take sides.

The Lanham Act as applied to the Redskins is certainly an example of side-taking. If the patent office were to side with the Redskins, it would be giving profound offense to those American Indians who justifiably object to the use of an old racial slur to name a beloved football club. If it were to side with the Indians, the patent office would anger those Americans (including, perhaps, some American Indians) who think that old traditions can be cleansed of their racist origins, and that their preservation contributes to the social good of conservative continuity.

Prohibitions on hate speech entail exactly this kind of side-taking. France has laws prohibiting group defamation. Indeed Charlie Hebdo had been sued (albeit unsuccessfully) under those laws for publishing cartoons that plaintiffs considered anti-Islamic.

The courts have traditionally made it difficult for U.S. jurisdictions to pass hate-speech laws. That legacy may mean that the Lanham Act is unconstitutional -- and that the Redskins win off the field even if they can't win on it.

The best example is the 1995 case Rosenberger v. Rector of the University of Virginia. A state university had created what the court defined as a “limited public forum” by funding student speech from mandatory student fees. The university tried to exclude any funding for religious speech, but the court held that this discriminated against a religious viewpoint. The religious student groups would still have been free to speak, they just wouldn't have been funded: almost a precise analogy to the Lanham Act.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read more